The Search for Reform

Civilian Oversight of the Spokane Police Department, A Timeline.

August 1992, in response to growing citizen concern about excessive force allegations and other alleged police abuses, the Spokane City Council approves Resolution 92-67, creating a Citizens Review Panel (CRP).

April 1995, in response to an Unfair Labor Practice Complaint filed by the Spokane Police Guild, a state hearing examiner concluded the CRP violated the state’s Public Employee Collective Bargaining law because of the CRP’s direct involvement in officer discipline. Officer discipline is a working condition and thus, by statute, is a mandatory subject for collective bargaining. The CRP was subsequently disbanded, and re-formed as a Citizens Review Commission that did not have the power to recommend officer discipline.

April 2007, City consultant Sam Pailca provides the Mayor and Council her report, Recommendations for Police Oversight, a New and Balanced Approach. The report is favorably received by Mayor Dennis Hession, Police Chief Anne Kirkpatrick and the Spokane City Council. In the report, Pailca recommends doing away with the Citizens Review Commission and replacing it with an office of police ombudsman. As a second step, Pailca recommends adding a Citizens Advisory Board to oversee and provide advice to the ombudsman.

April 2008, Under new Mayor Mary Verner, the City Administration enters into a “Tentative Agreement” with the Spokane Police Guild to replace the Civilian Review Commission with an Office of Police Ombudsman. The agreement defines the terms of what will shortly become the City’s Office of Police Ombudsman ordinance, C-34302. Among other things, the agreement gives the police unions considerable involvement in selecting the ombudsman and restricts the activities of the Ombudsman to reviewing the adequacy of police Internal Affairs investigations of complaints against officers. The agreement does not allow the Ombudsman to independently investigate citizen complaints, nor does it allow for the Ombudsman to file reports about his/her findings regarding citizen complaints. The agreement contains a paragraph (paragraph q) that stipulates: “this agreement shall become a new article within the collective bargaining agreement upon ratification by both signatory parties.” Significantly, the “Tentative Agreement”–while reiterating the Guild’s rights to collective bargaining–is entirely silent on the City’s managerial discretion. By agreement of both parties, the “Tentative Agreement” is added to the collective bargaining agreement with the Guild, as Article 27.

October 2008, The “Tentative Agreement” is presented to the Spokane City Council and results in a City ordinance (C-34302), passed October 6, 2008, that codifies the agreement with the Guild. While public testimony is invited on the ordinance, because its terms have been pre-negotiated with the police guild, the council insists it can vote only up or down on the ordinance. Although the council votes to approve the ordinance, several council members express concerns about its terms and public express their intent to seek changes to it when the collective bargaining agreement with the Police Guild is up for renewal.

October 12, 2009, The state’s Public Employee Relations Commission issues its ruling in Seattle Police Officer’s Guild v. City of Seattle. The case stems from the passage of an amendment to the Seattle municipal code that gives powers to the City’s civilian Office of Police Accountability Review Board to have access to un-redacted police files. The Seattle Guild argued that the release of un-redacted files to the OPARB could conceivably effect employee discipline. Because employee discipline is a working condition, and thus a mandatory subject of bargaining, the Guild argued that the amendment was subject to mandatory bargaining. The City argued that the amendment did not change the role of the OPARB, and that the board was still prohibited from playing any role in officer discipline. A hearing examiner agreed with the Guild, but the PERC overruled the examiner. PERC agreed with the City’s argument that the new amendment regarding OPARB access to un-redacted documents did not change the role of the OPARB, “that OPARB still does not have the ability to discipline employees, and that it remains an entity that is ‘all bark and no bite.’” Moreover: “The [hearing] Examiner’s conclusions that providing the OPARB with un-redacted files will impact the terms and conditions of employment are based upon the union’s speculation of what could occur, not what actually has occurred.”

October 19, 2009, With the City initiating negotiations with the Spokane Police Guild on a new collective bargaining agreement, the Spokane City Council passes Resolution 2009-0079, requesting that “the Mayor and the City administration bargain with the Spokane Police Guild..to grant explicit independent investigatory authority to the Office of the Police Ombudsman.”

November 22, 2009, The Spokesman-Review reports that the changes requested by the Council in Resolution 2009-0079 were “discussed” but not included in a new, two-year contract with the Spokane Police Guild. Thus, the Ombudsman ordinance passed in 2008 remains unchanged and the Ombudsman office still lacks power to conduct independent investigations.

January 2010, The disclosure that the City did not achieve any of the city council-backed reforms to the Ombudsman office in its new collective bargaining agreement with the Guild only amplifies public demands for a new Ombudsman ordinance. Working with the Center for Justice, the Peace & Justice Action League of Spokane (PJALS) submits a new ordinance that would explicitly grant independent investigative authority, and independent reporting authority to the OPO.

March 5, 2010, In response to the PJALS ordinance, City Attorney Howard Delaney and three assistant city attorneys prepare a memo for the Mayor and the city council. The memo confirms that the 2008 ordinance that tightly restricts the powers of the OPO were negotiated with the city police unions and were carried over into the current collective bargaining agreement with the Guild. As a legal matter, Delaney writes: “The City would have an uphill battle convincing PERC that, while we believed we should negotiate with the Guild on the issue in 2009, we are free to change it by legislative fiat—in direct contravention of the Collective Bargaining Agreement—in 2010.” Later in the memo, he writes: “At a minimum, the parties are bound by that agreement until the end of the contract term in 2011, when the City or the Guild are free to raise the issue again.”

June 28, 2010,The Spokane City Council unanimously passes Ordinance C-34609 to permit the OPO to conduct independent investigations into complaints and to require that the OPO issue independent “closing reports” in response to citizen complaints against Spokane police officers. The Mayor signed the ordinance the next day. While adding authority and responsibilities to the office, the new ordinance retained language that clearly prohibits the Ombudsman from having any involvement in disciplinary decisions affecting Spokane police officers.

August 20, 2010, The Spokane Police Guild files an Unfair Labor Practices complaint against the City with the state’s Public Employment Relations Commission (PERC). The Guild had earlier (July 21st) filed a contract grievance with the City alleging violation of Article 27 of the Guild contract, the contract provision containing the “Tentative Agreement” the City and Guild agreed to in 2008. Although the new ordinance retains the clear prohibition against the Ombudsman playing any role in the SPD disciplinary process, the basis of the Guild’s complaint is that, with the new ordinance, “the City made a unilateral change in its disciplinary procedures” and failed to provide the Guild with an opportunity to “bargain the change, or the effects of the change.”

September 3, 2010, The PERC responds to the Guild complaint by sending the City of Spokane a deferral inquiry, asking whether the City will defend the Guild’s complaint as a legal dispute (i.e. scope of bargaining issue)before the PERC or whether the issue is a contract dispute that is appropriate to defer to an arbitrator.

September 23, 2010, The City provides its answer, and chooses to defend the Guild’s complaint as a contractual dispute. It certifies that the issue is appropriate for arbitration. PERC assigns the controversy to arbitration the following week.

April 5, 2011,Arbitrator Michael Beck conducts the hearing. The parties do not provide him with a stipulated statement of the issue to be determined in the case. The Spokane Police Guild and its attorney, Michael Vick, presented an opening statement, called on witness (Vick himself) and provided 16 exhibits. As Beck noted in his report, “the City rested without providing an opening statement or calling any witnesses.”

June 6, 2011,The City files a posthearing brief with the arbitrator raising, for the first time, the legal issue of whether the passage of ordinance C-34609 violated RCW 41.56, the state’s Public Employees Collective Bargaining Act. In the brief, the City argues that all of the changes represented in the ordinance are within the City’s managerial discretion to implement without bargaining with the union. It further argues that its managerial discretion to implement such “permissive” the changes is covered by Article 3 of the collective bargaining agreement with the Guild.

June 6, 2011, In its post-hearing brief, the Guild continues to argue that the City has violated the collective bargaining agreement. As arbitrator Michael Beck later reports: “The Union does not specifically address the question of whether these changes constitute mandatory or permissive subjects of bargaining.”

July 11, 2011,Arbitrator Michael Beck issues his opinion in favor of the Spokane Police Guild. His decision comes with an important disclaimer: “The problem with PERC’s deferral [to arbitration] in this case is that whether or not the Employer’s conduct is protected or prohibited by the Collective Bargaining Agreement depends upon whether or not the changes here can be considered mandatory subjects of bargaining or permissive subjects of bargaining. This determination is appropriately one that should be made by PERC pursuant to the resolution of the complaint filed in this matter charging an unfair labor practice by the City of Spokane.” Nevertheless, Beck writes that he will render a judgment because the parties “have engaged me to resolve their dispute.” He rules for the Guild, finding, among other things: “While it is true that OPO does not get to make disciplinary decision (sic), the changes made by the ordinance make it so that OPO can put substantial pressure on the chief of police and/or the mayor due to its expanded role in the investigatory process and the expansion of its right to communicate with the public.”

August 22, 2011, In the face of overwhelming public testimony to appeal Beck’s decision, the Spokane City Council votes to appeal the decision to the PERC.

September 1, 2011,PERC’s Unfair Labor Practice Manager, David Gedrose, promptly denies the City’s appeal. In a ten page letter he sharply criticizes the City for misleading PERC when City requested arbitration of the dispute with the Guild. The City, Gedrose writes, “did not raise its newly adopted statutory defense until after the arbitration hearing was over, and so offered the Arbitrator no evidence to consider, only argument. The Employer’s defense, raised for the first time after April 5, 2011, asserted that rather than a contractual issue, the issue was statutory under Chapter 41.56 RCW, and that Article 18 of the contract protected the Employer’s conduct. Had the Employer’s answer to the unfair labor practice complaint stated that the issue was whether the Ordinance violated Chapter 41.56 RCW, the case would not have been deferred to arbitration.”

October 10, 2011, Faced with the choice between appealing the arbitrator’s decision to Superior Court, or repealing the 2010 ordinance, the Spokane City Council votes 5-2 to repeal the ordinance. With the vote, the council reverts to the October 6, 2008 Ombudsman ordinance, thereby stripping the office of the investigative and reporting authority added by the 2010 ordinance.??January 2012, The 2009-2011 collective bargaining agreement between the City and the Spokane Police Guild expires at the end of 2011. The expired agreement–which contains language that bars the Office of Police Ombudsman from conducting independent investigations–will remain in effect until the two sides reach agreement on a new contract.

January/February 2012,With the election of a new mayor and city council, both the mayor and council issue statements declaring that a top priority is to restore independent investigative and reporting authority for the OPO.

May 21, 2012, The Spokane City Council approves a settlement in the federal civil rights case stemming from the death of Otto Zehm at the hands of Spokane police in early 2006. The settlement includes mandatory training for Spokane police officers in how to recognize and respond to persons afflicted with mental illness.

November 1, 2012,Frustrated by the City’s lack of progress in reforming police oversight, the Center for Justice, the Peace & Justice Action League of Spokane, and the Spokane Chapter of the League of Women Voters hold a press event at City Hall to present a new proposed ordinance to the Mayor and the Council.

December 17, 2012, With leadership from new city council members Steve Salvatori and Michael Allen, the Spokane City Council unanimously approve an ordinance calling for a ballot measure that will amend the Spokane City Charter to require a truly independent Office of Police Ombudsman (OPO) and create a new commission to oversee and advance the OPO’s work. The ballot measure gets registered as Proposition 1.

December 21, 2012, The Mayor’s Use of Force Commission delivers its final report to Mayor Condon and releases the report at City Hall. Among its findings and recommendations is a strong call for independence for the Office of Police Ombudsman. The report includes the recommendation that all city employees and those acting on behalf of the city be required to cooperate with the OPO during OPO investigations. The report also chides the City and the Spokane Police Guild for a lack of transparency in labor negotiations that effect the terms of independent oversight of the police department.

May 20, 2013, With Proposition 1 still being held hostage to ongoing contract negotiations between the City and the Spokane Police Guild, the Spokane City Council unanimously passes a resolution containing an advisory ordinance. The purpose of the advisory ordinance–which would implement Proposition 1–is to guide the City’s negotiations with the police guild.

July 3, 2013, With no end in sight to contract negotiations between the City and the Spokane Police Guild, the Center for Justice and the Peace & Justice Action League of Spokane call upon the Mayor to publicly disclose the status of the negotiations and to take proactive steps to protect Proposition 1 in the event the negotiations reach impasse and go to arbitration.

October 4, 2013,Just days after Spokane City Councilman files the May 20, 2013 resolution as an ordinance to go ahead with implementing Proposition 1, City officials quietly announce they’ve reached agreement with the Spokane Police Guild on a new collective bargaining agreement. The news of the new “tentative agreement” coincides with a new push from the Condon Administration to defer consideration of the Salvatori ordinance. A review of the still confidential “tentative agreement” by the Center for Justice quickly results in a scathing critique from the Center’s legal staff. “I think all of us involved in the review were shocked when we read it,” said CFJ Executive Director Rick Eichstaedt. “Although the City and the Guild say this new agreement complies with Proposition 1, we just don’t see it.” When asked if Mayor Condon was confident the new agreement would allow for independent investigations by the Office of Police Ombudsman, the Mayor’s spokesperson, Brian Coddington, responds “we are comfortable that the tentative agreement gets us to where the community wants. Unfortunately, I can’t comment on..any of the specifics.”

October 7, 2013, Rather than deferring Salvatori’s ordinance to implement Proposition 1, the city council instead votes to gut the ordinance and pass only the part of the measure pertaining to the appointment of a new Police Ombudsman Commission. Council President Ben Stuckart announces a new series of hearings that will take place once the “tentative agreement” with the Spokane Police Guild becomes public, to take public comment on whether the agreement and an implementing legislation is consistent with Proposition 1. The “tentative agreement” is finally released on November 1st.

November 11, 2013, In an unusual step, and with unusual speed, the Spokane City Council suspends its rules at its mid-afternoon briefing and votes unanimously to reject the new “tentative agreement” with the Spokane Police Guild. Explained Council President Ben Stuckart: “Today it became clear to the entire City Council that developing an ordinance based on the language in the negotiated TA would not meet the needs of independent oversight.”

January 2, 2014,In response to a renewed push from Mayor David Condon to win City Council approval for a new contract with the Spokane Police Guild, Council President Ben Stuckart sends a letter to the Mayor outlining conditions the new contract must fulfill in order to win majority support from the council.

February 10, 2014,In defiance of overwhelming public testimony opposing a new agreement with the Spokane Police Guild, the Spokane City Council votes 6-1 to approve the agreement. The approval takes the form of a new ordinance that purports to implement Proposition 1, the City Charter amendment adopted by Spokane voters in February 2013. Although the main purpose of Proposition 1 was to ensure independent investigations into alleged police misconduct by the city’s Office of Police Ombudsman (OPO), the new ordinance allows for such independent investigations only under extreme circumstances. As of October 1, 2015, there has yet to be a single independent investigation conducted by the OPO in response to the city charter changes implemented as a result of Proposition 1.